The Federal Communications Commission concluded that under a decade-old set of rules governing over-the-air reception devices, or OTARD, the world's No. 5 airline was well within its bounds to provide the free service.
The decision "clarifies that American consumers and businesses are free to install Wi-Fi antennas under our OTARD rules--meaning without seeking approval from their landlords--just as they are free to install antennas for video programming and other fixed wireless applications," Democratic Commissioner Michael Copps said in a statement accompanying the FCC's 23-page order (click for PDF).
The feud between airport authorities and Continental, when Massport instructed the airline to remove a Wi-Fi system it had installed in July 2004 in its "President's Club" frequent-flier lounge at Logan International. The airport authorities claimed that the system, which was accessible for free by passengers with lounge privileges and by some airline employees, violated the terms of Continental's lease. Massport charges $7.95 per day for its own terminal-wide wireless service.
Continental filed a petition last July with the FCC, asking it to declare Massport's demands a violation of federal rules.
The FCC concluded that the lease terms were "unreasonably" restrictive. Furthermore, it said Continental's antenna met the three conditions necessary for acceptance under the federal rules: It measured 1 meter or less in diameter or diagonal measurement; it was used to receive or send commercial, non-broadcast radio signals; and it was located on property for which the airline has a "direct leasehold interest"--namely, a closet inside its frequent flier lounge.
Massport had also argued that Continental's system posed a risk of harmful interference with equipment used by state police and Transportation Security Administration officers. But the standards for protection against interference on unlicensed spectrum, where Wi-Fi networks reside, aren't as strict as those on spectrum licensed for public safety purposes, the FCC said.
"It's an important tradeoff, and a critical one," Democratic Commissioner Jonathan Adelstein said in a statement. "Wi-Fi users can freely deploy their networks in areas under their control, but, in return, must accept interference from other Wi-Fi operators."
For the same reason, the commissioners also dismissed Massport's argument that Continental's service would cause it economic harm by taking away revenue from the airport's own Wi-Fi offerings. The airport shouldn't expect to make money off of unlicensed devices, the FCC wrote, and furthermore, the government in this case has a stronger interest in promoting broadband availability and competition.
Massport spokeswoman Danny Levy declined to comment on the specifics of the decision. "We're disappointed in the ruling," she said. "We're reviewing it carefully and weighing our options moving forward," acknowledging that additional legal action was not out of the question.
Continental applauded the decision in a statement, calling it a "resounding victory to the airline and for consumers."
The FCC's order is not only good news for the many airlines and more than 2,000 Continental customers that filed comments in support of Continental's position. It could be a turning point for those hoping to roll out community wireless projects, said Harold Feld, senior vice president of the Media Access Project, a public interest law firm.
For example, city officials in Boston have recently been discussing how to go about setting up wireless access points in apartment buildings where residents cannot afford their own broadband subscriptions. Without the FCC's decision in place, landlords may have been able to get away with blocking certain free or low-cost wireless services and equipment, Feld said.
The order, he said in a statement, "provides a powerful affirmation to the community wireless movement in the United States by protecting the rights of users to operate Wi-Fi access points and other unlicensed devices, whether or not a landlord has an exclusive arrangement with a provider."